Judgment

K. Venkataswami, J.-Special leave granted.

Heard counsel on both sides.

2. The appellant filed a suit for specific performance of the contract in question by returning (delivery) the goods weighing 124.255 Metric Tonnes rail/blooms or in the alternative to direct the defendant to pay a sum of Rs. 2 lacs against the non-delivery/supply of the said goods. Brief facts are the following:-

According to the appellant, it was agreed between the parties that the respondent herein accepted the offer for re-rolling of M.S. bars out of rails and blooms for all dias, i.e. 10 MM to 20 MM on certain conditions. The relevant conditions as given in the Plaint are the following:-

Condition No. 2 :

Steel will be supplied weight to weight.

Condition No. 3 :

The firm will be responsible for the quality of steel out of the material supplied by the Board.

Condition No. 4 :

The supplier shall be responsible for safe custody of the material supplied by the Board to them.

Condition No. 7 :

About 2000 Mts. of rail or bloom shall be got re-rolled from you during 1976-77.

3. The admitted facts are that the appellant supplied 1992.745 Metric Tonnes rail/ blooms in 1997 for re-rolling to the defendant. The re­spondent, however, returned 1869.490 Metric Tonnes of re-rolled mate­rials as against the supply of 1992.745 Metric Tonnes rail/blooms. The respondent by its letter dated 16.11.78 informed the appellant that a balance of 18.765 Mt. of rail/blooms, in addition to Rounds weighing 2.299 Mt., were lying in its stock and the balance of the material was burnt while re-heating in the furnace in the process of re-rolling. According to the appellant, as per the terms and conditions of the Contract, the re­spondent was liable to return the entire/equal quantity of the rail/blooms supplied for re-rolling. As the respondent failed to return the entire quantity supplied for re-rolling, the filing of suit quantity supplied for re-rolling, the filing of suit became necessary.

4. The respondent not only resisted the suit but also filed a counter-claim stating that it has over supplied the re-rolled material as such it was entitled to recover a sum of Rs. 1,15,735/- on account of wastage of raw material.

5. The suit and the counter-claim were tried together. The plaintiff examined one witness to prove Exh. P1, a letter (offer) written by the appellant to the respondent. The Trial Court framed as many as six issues and found that Exh. P1 (letter) could not be said to be a valid agreement since it lacked the signatures of the representatives of the defendant and in the light of the plaintiff’s (appellant) failure to place all the relevant documents before the Court, the terms and conditions of the alleged contract had not been proved. On that basis, the Trial Court partly decreed the suit of the appellant to the extent of the admission made by the respondent in its correspondence about the balance of rail/blooms available with it after re-rolling. As regards the counter-claim, it was dismissed on the ground of failure on the part of the defendant to substantiate the same. It may be noted that the defendant has not examined any witness.

6. Aggrieved by the partial decree of the suit, the appellant pre­ferred an appeal to the Appellate Court. The Appellate Court carefully considered the matter and found that the Trial Court was not fully right in holding that all the terms and conditions of the Agreement were not proved inasmuch as certain terms and conditions extracted in the Plaint were admitted by the respondent in the written statement. Nevertheless, the Appellate Court dismissed the appeal observing as follows:-

“Apparently, the defendant had carried out work for the plaintiff Board but in the absence of the prior correspondence relating to the offer made by the defendant Mill as also response given by the Mill to the letter dated 13.5.1976 Ex. P1, it would be difficult for the Court to gauze conclusively as to what were the exact